Mediation: Is it useful?

In a word, yes!  But let's talk about what mediation is for those that don't know.  Mediation is a chance for two sides of a problem to meet with a neutral third party to facilitate an agreement without trial.  Typically this consists of both parties to litigation, their lawyers, and the mediator.  In the Coweta Judicial Circuit, like many districts in Georgia, the Superior Court has a standing rule that no domestic case (divorce, custody modification) can have a final hearing without first having gone through mediation.  This means that I mediate a fair number of cases with my family practice.  In fact, you might be reading this now because you are about to mediate yourself.

So, why do I think mediation is useful?  For starters, it is a chance for litigants to work out their differences without a judge.  Not that judges are bad; quite the contrary.  When you let a judge decide your case, however, the judge alone is in charge.  In mediation, you can set your own terms and remain in control.  For most people, the ability to control their case is paramount.  When both parties are reasonable in mediation, the chances of crafting the best case scenario deal are way better than trying your case to the judge.

Speaking of reasonableness, you might think mediation is a waste because the other side is so crazy/silly/totally off-base.  Truth is, people are usually much more reasonable in a mediation setting.  Why is that, you ask?  Well, each party is more than happy to act like a jerk to their soon-to-be-ex in the privacy of their own homes, but put them in the same room with their lawyer, a lawyer they don't know, and a mediator they don't know and you will find the most roaring a*hole becomes the epitome of calm.  This surprises most people when mediating, which is why so often an agreement is reached.

Which brings me to my next point.  You might not want to mediate, but in my experience, about 80% of the cases I mediate settle at mediation (at least in part).  These cases settle when the parties buy in to the process and come with a good faith attempt to resolve their issues.  Your case might not settle, and the other side might still show up with no intention of settling, but usually things work out for the best.

Finally, we cannot underestimate the power of a great mediator.  Mediators are not trained to care whether an agreement is reached or what is agreed to.  Their primary purpose is to facilitate your conversation with the other side.  Sometimes this takes place with all parties in the same room, and other times you will caucus privately with the mediator.  In either scenario, the mediator with play devil's advocate and problem solve with you to come up with solutions you can live with.  Thankfully, we have great mediators in my circuit.

If you are prepping for mediation, remember to go in with an open mind.  You may not agree on everything, but your chances of finding common ground are high and the other party just might surprise you.

Best of luck!

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.